by Andrew Tucker, thinc. Director
“UN report concludes that Israel is committing genocide“
The UN “Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel” has published a report this week concluding that Israel is guilty of committing various acts of “genocide” in Gaza.
Factual evidence
In reaching its conclusion, the Commission has relied heavily on direct and indirect input from Hamas, the terrorist organization that started this war. The figures of numbers of deaths, for example, provided by the Gaza Health Ministry cannot be relied on at face value, and must be subjected to independent analysis.
According to Prof. Geert Jan (Alexander) Knoops (Universities of Amsterdam and Shandong), the report “is factually very weak. It is largely based on open source and second-hand information that cannot be verified. It gives a summary of what certain witnesses have said, but does not state who the persons are who provided the information. It is impossible to verify that information. That is insufficient basis for a court to reach a conclusion.”
Knoops also criticizes the Commission’s reliance on UN reports. The information in those reports cannot be taken at face value but need to be tested. For example, independent investigation of the numbers of trucks entering Gaza indicates different numbers than those cited by the Commission. “As a lawyer, that makes me wonder whether I can trust the narrative that the Commission is presenting”.
Wrong legal frame
The Commission examines all of Israel’s conduct through the lens of genocide. This leads the Commission to draw conclusions that are not supported by the facts themselves.
The major problem with this is that it ignores the fact that Israel is fighting a war of self-defence against an enemy (Hamas and its allies) that for two decades has been trying to annihilate Israel. As Judge Barak noted in his Separate Opinion in January 2024, the appropriate legal framework for analysing this situation is International Humanitarian Law (IHL) and not the Genocide Convention. IHL provides that harm to innocent civilians and civilian infrastructure should not be excessive in comparison to the military advantage anticipated from a strike. The tragic loss of innocent lives is not considered unlawful so long as it falls within the rules and principles of IHL (necessity, distinction and proportionality).
Barak noted that the drafters of the Genocide Convention clarified in their discussions that “[t]he infliction of losses, even heavy losses, on the civilian population in the course of operations of war, does not as a rule constitute genocide. In modern war belligerents normally destroy factories, means of communication, public buildings, etc. and the civilian population inevitably suffers more or less severe losses. It would of course be desirable to limit such losses. Various measures might be taken to achieve this end, but this question belongs to the field of the regulation of the conditions of war and not to that of genocide.”
At most the report identifies potential violations of International Humanitarian Law (the law of armed conflict), but not genocide. The Israeli authorities have taken and continue to take action against individual soldiers who have violated those norms, demonstrating Israel’s commitment to upholding international law. Almost no other military in the world enforces the law against its own soldiers to the same extent Israel does.
No proof of intent
The Genocide Convention requires proof of intent “to destroy a people in whole or in part, as such.” According to Prof. Steven E. Zipperstein (UCLA), the evidence cited by the Commission does not constitute proof that Israel is killing Palestinians in Gaza “as such,” meaning simply because they are Palestinian. Moreover, the International Court of Justice (ICJ) has previously ruled that the term “destroy” means “physical or biological destruction.” Zipperstein notes that the ICJ has also said the words “in part” mean in “substantial” part, such as the 97% of Polish Jews murdered in the Holocaust. The less than 2% of Gazans who have died during the current conflict – at least half of whom are Hamas terrorists and others who died of old age and other natural causes – do not qualifyt as a “substantial part” of the Palestinian people.
According to Zipperstein, the facts do not even remotely support the claim of genocidal intent. “If Israel truly intended to commit genocide, then why does it routinely notify civilians to evacuate combat zones before striking? Why did it pause fighting and facilitate the distribution of polio vaccines for 500,000 Gazans in August 2024? Why has it allowed thousands of tons of humanitarian aid into Gaza? These undisputed facts completely negate the existence of genocidal intent.
The Commission’s conclusions are not surprising, given the Commission’s prior reports alleging that Israel is guilty of gross violations of international criminal law. Sadly, the report represents yet another example of the UN’s complete lack of impartiality and objectivity regarding Israel, and its weaponization of international law against the Jewish State. Why have we not seen any similar UN report regarding Russian atrocities in Ukraine, or the mass murders and deliberate starvation campaign happening right now in the Sudan?”
